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Kumar Prativa Nath Roy and ors. Vs. Bonomali Sarkar and ors. - Court Judgment

LegalCrystal Citation
Subject Tenancy
CourtKolkata
Decided On
Reported inAIR1931Cal565
AppellantKumar Prativa Nath Roy and ors.
RespondentBonomali Sarkar and ors.
Cases ReferredMidnapore Zemindary Co. v. Sridhar Mahto
Excerpt:
- .....filed in the case in which the rent fixed is described as 'tarafer procholita nirikh' or the current rate of the taraf to show that there was a customary rate. mr. sen has argued that there is no evidence to show that there is a customary rate in the vicinity of these tenures because there may be a customary rate in the taraf which i take to mean 'the estate,' but there may not be customary rate in the locality. i am unable to agree with him in his contention because if there is a customary rate of the taraf, it means that that rate prevails throughout that estate including the tenures in suits which lie within it.8. then lastly mr. sen argues on behalf of the appellant that additional rent should have been granted to the plaintiff for additional area which is now in the possession of.....
Judgment:

1. These thirty appeals by the landlord, arise out of proceedings under Section 105 of the old Ben. Ten. Act. Six of these appeals Nos. 511, 513, 514, 516, 517 and 521 relate to occupancy holdings and the remaining 24 relate to tenures. In the cases relating to occupancy holdings it is argued generally that the Courts below were wrong in dismissing the plaintiff's applications for settlement of fair and equitable rent on the ground of rise in the price of staple food crops under Section 30, Ben. Ten. Act, in the view that the tenancies of the tenant in these cases did not constitute entire holdings within the meaning of Section 30. In Second Appeals Nos. 511, 514 and 516 the Revenue Officer had allowed additional rent for additional area. There were no appeals to the lower appellate Court from those decrees but yet the District Judge in his judgment referred to these cases. As additional rent for additional area was allowed in those cases only on the ground that in the kabuliyats executed by the tenants in those cases there was a stipulation for payment of additional rent for excess area, the learned Judge in view of some decisions, held that the enhancement granted under that section was illegal. Since there were no appeals to the learned Judge from the decrees of the trial Court in those cases by the tenants we do not think that the learned Judge had any jurisdiction in the matter and his order varying the decrees of the trial Court in those cases allowing additional rent for additional area to the plaintiff must be held to be wrong and the appeals in those cases should be allowed to that extent. No one appears in Second Appeals Nos. 511 and 514 but Dr. Pal appears for the respondents in No. 516 and he has fairly conceded that he cannot support this portion of the order of the learned Judge.

2. Then with regard to the general ground taken in all the appeals, namely, the lower Courts were wrong in holding that under Section 105, enhancement under Section 30, could not be allowed because the tenancies did not constitute entire holdings, we have been addressed at length and very ingeniously by Mr. Sen who has tried to induce us to hold that ''land' in Section 105 includes part of a holding and thus to differ from a chain of decisions beginning with Hari Charan Bose v. Banjit Singh [1898] 25 Cal. 917n. His argument is that if the landlord brings a suit under Section 30 for enhancement of rent he must be the landlord of a 'holding' as defined in Section 3, Clause 9, of the old Ben. Ten. Act as a parcel or. parcels of land held by a raiyat and forming the subject of a separate tenancy. But the learned advocate contends, in proceedings taken by the landlord under Section 105, Ban. Ten. Act where the word 'land' is used instead of 'holding' the Revenue Officer has the power to proceed on the principle of Section 30 even though the tenancy may consist of a share in a holding.

3. Reference in support of this contention has been made to the decision in Surendra Chandra Roy Choudhury v. Kedareswar Chowdhury : AIR1929Cal156 to which I was a party. There following other decisions of this Court mainly the decision in the case of Safaraddi v. A. K. F. Huq [1915] 30 I.C. 414, I expressed an opinion though with some 'hesitation that the word 'land' as used in Section 105 may include a share of a cosharer landlord and therefore includes a share of a tenant in a holding. This decision came for examination by my learned brothers Graham and Mitter, JJ., in Nagimamud Pramanik v. Idris Khan A.I.R. 1931 Cal. 303 and there Mitter, J. observed that the cases upon which I relied were not cases under Section 105, but the question in those cases was with reference to the applicability of Section 188, Ben. Ten. Act. That may be so, but in Safaraddi's case [1915] 30 I.C. 414, the tenant of a cosharer landlord had executed a kabuliyat in favour of that landlord in respect of his share of the land in the holding. That cosharer applied under Section 105 for settlement of fair rent in respect of his eight annas share covered by the kabuliyat of the tenant. No doubt objection taken there was that the application was barred under Section 188, Ben. Ten. Act. But that objection was overruled and the case was sent back to the trial Court for decision on such question on the merits as might arise. The only question that could be determined on retrial was whether the landlord was entitled to enhancement of rent either under Section 30 or Section 52. So it cannot be said that that case did not involve the consideration of the scope of Section 105. The result of the decision was that the Court was called upon to decide whether the landlord was entitled to settlement of fair and equitable rent which, in other words means enhancement either under Section 30 or Section 52. The decision in that case was by D. Chatterjee, J., and it was accepted in appeal by Jenkins, C.J., and N.R. Chatterjee, J. I do not think that that case has no bearing on the question now before us, whether 'land' in Section 105, Ben. Ten. Act, does or does not include part of a holding. Mitter, J., has further relied upon Clause (4), Section 105, for the view which he has expressed in the unreported second appeals that the Revenue Officer is bound by the provisions of Section 39, namely, that he can only enhance rent in respect of an entire holding. Mr. Sen for the appellant has rightly pointed out that Clause (4), Section 105, speaks of 'rules' that have been laid down in the Act for the guidance of civil Courts. Those rules are to be found in Sections 31, 32 and 33 as rules to be followed in allowing enhancement under Section 30. does not lay down any particular rule and therefore Clause (4), Section 105 does not seem to imply that the Revenue Officer has to follow the provision of Section 30 as one of the rules laid down for the guidance of the civil Courts. Though I do not agree with the view given by my learned brother Mitter, J., for disapproving of the view expressed by me in Surendra Chandra Roy Choudhury's case but on further consideration I am not now disposed to differ from the view which is the accepted view of this Court and the Patna High Court, namely, that if a Revenue Officer is invited to settle fair and equitable rent under Section 30 or 52 he has to apply the provisions of those sections to the holdings to which they apply i.e., the entire holding. This view has been recently expressed in Benod Kumar Boy v. Gangacharan A.I.R. 1930 Cal. 595, in which we said:

In Section 105 the word used is land and it hag, sometimes been interpreted as including an undivided shire in a plot, The landlord may claim under Section 105 enhancement or settlement of fair and equitable rent under Section 52 but it seems that if the tenancy in respect of which additional rent is claimed under Section 52 is composed of an undivided share the claim will not be admitted under Section 105 also.

4. The same consideration applies to settlement of fair rent under Section 30, Ben. Ten. Act. I am still in doubt with regard to the significance of the word 'land' in Section 105 unless it applies to a holding or part of a holding for which no rent was previously payable. But my doubts are not so strong as to induce me to differ from so many cases which have held that a revenue officer under Section 105 cannot settle rent of a share of a holding as I find there is reason behind this view. When a Revenue Officer is called upon to settle fair rent of a rent-paying tenancy, he has to proceed under Section 30 or Section 50 and can apply these provisions only to the kind of tenancy to which they are by law applicable. I am accordingly of opinion that the view taken by the Court below that the plaintiff is not entitled to an enhancement under Section 30 in these six appeals, is correct.

5. Although the decrees of the lower appellate Court dismissed the plaintiff's claim under Section 30 in respect of all these six cases, Mr. Sen has placed before us kabuliyats in Second Appeals Nos. 511 and: 514 and has argued that the kabuliyats show that the holdings in these two appeals constitute entire holdings and therefore the decree of the lower appellate Court with reference to them is wrong. This point does not seem to have been taken in any of the Courts below but at the same time we are of opinion that if Mr. Sen's contention is right as it appears from the kabuliyats placed before us there is no reason why the land-lord should be permanently deprived of his right. If the respondent had appeared in these cases it would have been easy for us to determine the question here. But as the appeals are being heard ex parte we think it proper that this matter should be investigated by a Court of fact and therefore we are 'disposed to send these appeals back to the lower appellate Court for reconsideration on this ground.

6. The remaining 24 appeals refer to tenures and it has been concurrently held by both the Courts below that the plaintiff is not entitled to a decree for enhancement of rent under Section 7, Ben. Ten. Act, because he has failed to prove that there was any customary rate as mentioned in Clause (1) of that section. Mr. Sen argues in the first place that the plaintiff had applied to the lower Court to amend his plaint and his application was granted. By that amendment he made it clear that there was no customary rate in the village and in the vicinity. This statement was not challenged by the defendants and no evidence was adduced by the defendant to contradict that statement whereas there is some evidence on the record to show that there is no customary rate. Mr. Sen, accordingly invites us to hold that the Courts below were wrong in their view that the plaintiff failed to prove that there was no customary rent and hence they should have proceeded under Clause (2), Section 7. We are unable to interfere with the decrees of the Court below on this ground because the findings were arrived at by them on a consideration of the evidence. Under Section 7, Clause (1), enhancement can only be allowed up to the limit of the customary rate. So that unless the customary rate is proved the Court would not be in a position to allow any enhancement whatsoever. Under Clause (2) where no such customary rate exists the Court may allow the enhancement up to such limit as it thinks fair and equitable. The law therefore provides that in order to entitle the landlord to claim enhancement under Section 7 he must first prove that there is a customary rate or that there is no customary rate prevailing in the vicinity. Midnapore Zemindary Co. v. Sridhar Mahto : AIR1930Cal595 . If he succeeds in doing so, he can then apply to the Court to allow enhancement as it thinks fair and equitable. The finding of the learned District Judge is in these words:

I agree with the Assistant Settlement Officer, that the onus of proving the non-existence of any customary rate lay upon the plaintiffs and upon perusal of the evidence I am constrained farther to agree with the Assistant Settlement Officer that the landlord has not succeeded in discharging that onus.

7. This must be regarded as a finding of fact with which we are unable to interfere. The learned District Judge has also referred to certain kabuliyats filed in the case in which the rent fixed is described as 'Tarafer Procholita Nirikh' or the current rate of the Taraf to show that there was a customary rate. Mr. Sen has argued that there is no evidence to show that there is a customary rate in the vicinity of these tenures because there may be a customary rate in the Taraf which I take to mean 'the estate,' but there may not be customary rate in the locality. I am unable to agree with him in his contention because if there is a customary rate of the Taraf, it means that that rate prevails throughout that estate including the tenures in suits which lie within it.

8. Then lastly Mr. Sen argues on behalf of the appellant that additional rent should have been granted to the plaintiff for additional area which is now in the possession of the tenure-holders. The trial Court held that no such case was made in the plaint and in the schedules and therefore it did not enter into that question. There was no appeal to the learned District Judge on this ground and he has accordingly not considered it. On an examination of the plaint we find that the Revenue Officer was right in saying that there was no claim for additional rent for additional area in them. In the body of the plaint there is a statement that there was excess land in the possession of the tenure holders but in the prayer no additional rent was claimed for additional area and no issue was directed towards this question. We cannot give effect to this contention at this stage and we must therefore reject it.

9. The result is that Second Appeals Nos. 513, 517 and 521 are dismissed without costs. The other appeals except Second Appeals Nos. 511, 514 and 516 are dismissed with costs; half gold mohur in each case in which the respondent appears. There will be no costs in appeals in which the respondents have not appeared.

10. The Appeals Nos. 511 and 514 are partially allowed and the cases remitted to the lower appellate Court for the determination of the question whether the tenancies involved in these cases are entire holdings or undivided shares in them. The costs in these cases will abide the result. The decree of the lower appellate Court in Second Appeal No. 516 is set aside and that of the Court of first instance restored. There will be no order for costs in this case of this Court or of the Court below.


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